I am trying to catch up on blogging I should have done a long time ago. I was recently quoted in Lawyers USA concerning the Horizontal Gaze Nystagmus (HGN) test. The part of the article quoting me:
“Challenge in Kansas
Criminal defense lawyer Jay Norton, a partner at Norton Hare in Overland Park, Kan., is handling a case in which prosecutors are trying to change the rules on the admissibility of HGN testing.
Kansas is one of the few states where HGN test results are currently inadmissible.
A Frye hearing is scheduled for April 26 on the admissibility of an HGN test in the DUI arrest of a 19-year-old client.
Norton said he intends to argue against both the test itself and the way it is administered by police.
“The fact of the matter is it’s not really good science, and certainly not for law enforcement purposes,” he asserted. “It’s one thing for ophthalmologists or optometrists to be conducting this test in their offices, but it’s a whole other thing for officers to be doing this test on the side of the road in the middle of the night.
“Basically, with zero training and zero demonstration of proficiency, people hit the road and give this scientific test and testify with this air of authority, when there’s 49 possible causes for horizontal gaze nystagmus,” Norton charged.
The HGN has been inadmissible in Kansas since 1992 because the Kansas Supreme Court has found that the “test” has not gained acceptance in the scientific community as a reliable indicator of whether a person is under the influence of alcohol to such a degree that he or she cannot safely operate a car. Prosecutors have been trying ever since to change Kansas DUI laws to make the HGN admissible. However, the weight of scientific research into the HGN is moving against it and not for it. The studies and articles extolling its virtues as a tool for DUI enforcement are from the 1980’s and 1990’s. In recent years, more and more scientific studies and publications have demonstrated that a large number of sober people have HGN naturally. There are also hundreds of medications, physical conditions and natural causes of nystagmus that have nothing to do with the ingestion of alcohol. The HGN is junk science and always will be. I am proud that Kansas was one of the leaders in booting it from our courtrooms. Other states are beginning to follow. Illinois just ruled that the HGN could not be used to prove DUI, but only that alcohol may be present, and only when the officer had been properly trained and gave the test according to that training. I do not expect the law to change in Kansas and believe that the HGN will remain inadmissible in Kansas DUI cases. However, Kansas DUI attorneys need to be familiar with the HGN and the law and science behind it because the prosecution is intent on trying to get it into our courtrooms.